AGHA MUHAMMAD VS ADDITIONAL COLLECTOR OF CUSTOMS
2005 P T D 1029
[Karachi High Court]
Before S. Ali Aslam Jafri, J
AGHA MUHAMMAD
versus
ADDITIONAL COLLECTOR OF CUSTOMS
Special Customs Appeal No. 107 of 2000, decided on /01/.
1st November, 2004. (a) Customs Act (IV of 1969)---
----S.196---Civil Procedure Code (V of 1908), O.XLVII, R.1---Appeal to High Court---Review---Question raised in review application under O.XLVII, R.1, C.P.C. related to factual controversy which already stood decided in view of the findings recorded by the Collector of Customs and the Appellate Tribunal that the betel-nuts being smuggled/contraband goods were confiscated as per law and the documents produced by the appellant in respect of his claim did not tally with the material recovered, hence the applicant/claimant failed to discharge his burden---Review application having no merits was dismissed.
Messrs Baghpottee Services (Pvt.) Limited and others v. Messrs Allied Bank of Pakistan Limited 2001 CLC 1363; The State v. Umer Hayat PLD 1992 SC 393 and State through Deputy Attorney General Peshawar v. Banda Gul and 2 others 1993 SCMR 311 ref.
(b) Customs Act (IV of 1969)---
----Ss.161(1)(2)(8)(9) & 12---Criminal Procedure Code (V of 1898), S.4(s)---Contention of the appellant was that F.I.R. was registeredatthe place which was not a notified police station in terms of S.4(s), Cr.P.C.---Validity---Held, S.161, Customs Act, 1969 dealt with the situation as existed in the present case and subsections (1) (2) (8) (9) and (12) thereof were a complete answer to the contention by the applicant.
Messrs Baghpottee Services (Pvt.) Limited and others v. Messrs Allied Bank of Pakistan Limited 2001 CLC 1363; The State v. Umer Hayat PLD 1992 SC 393 and State through Deputy Attorney General Peshawar v. Banda Gul and 2 others 1993 SCMR 311 ref.
Sohail Muzaffar for Applicant.
Fariduddin for Respondent.
Date of hearing: 22nd September, 2004.
Review Application No.8 of 2001
ORDER
Through this application filed under Order XLVII Rules 1 and 5, C.P.C.,appellant/applicantisseekingreviewoftheorder,dated16-3-2001passedbyaDivisionBenchofthisCourtcomprisingMr. Muhammad Roshan Essani, J.( as he then was) and the undersigned in Special Customs Appeal No. 107 of 2000.
The facts of the case appear to be that in pursuance of a information regarding smuggled betel-nuts being transported from Quetta to Karachi through truck bearing Registration No. QAF-8163, a party headed by Deputy Superintendent, Mobile Squad-III, Hyderabad, was formed to foil the smuggling. The said party intercepted the truck in question at
Super Highway near TollPlaza and on search found it loaded with betel-nuts packed in gunny bags. Truck was detained and taken in custody. It was found to be carrying 260 bags, weighing 22560 Kgs. of betel-nuts. Two bilties produced by the driver showed that the goods were misdeclared as one bilty showed the description of goods as Khushk Bar and the other bilty showed the goods as Choker . The goods having been found smuggled one, driver of the truck namely Syed Muhammad and cleaner Muhammad Khan were taken in custody. Mashirnama was prepared. Notice under section 171 of the Customs Act, 1969, was served upon the truck driver whose statement was also recorded.
It appears that one Rehmatuallah S/o Abdul Manan business partner of appellant/applicant Agha Muhammad claimed the ownership of the seized goods and contended that the seized truck was containing 22560 Kgs. of betel-nuts which were loaded from Customs House, Chaman (Balochistan) for Karachi and in support of his contention produced photostat copies of the bill of entry of the goods but according to the Customs Authorities the said documents were found not relevant to the goods seized as the bill of entry was old and the quantity shown therein also did nottally with the actual quantity found in the truck. Some gunny bags loaded with betel-nuts were found affixed with stickers pasted on the bags with the remarks Taqdeer Hanifi Ltd. Kandhar Afghanistan Via Karachi Transit Kandhar Afghanistan . Since the goods were found smuggled one hence claimant Agha Muhammad was found to have committed offence punishable under section 156(1)(89) & (90) of Customs Act, 1969 and the Rules made thereunder. Show-cause notice was issued to the claimant as to why the seized goods and vehicle should not be confiscated and penal action under the law be not taken.
After hearing claimant Agha Muhammad and the representative of the department, confiscation of betel-nuts as well as truck was ordered. However, owner of the truck was allowed to redeem the truck on payment of redemption fine of Rs.1,00,000. Agha Muhammad filed an appeal which was heard and dismissed by Collector of Customs who reached at the conclusion that the goods were smuggled and the charge of smuggling contraband goods stood established against the truck. The bills of entry relied upon were found to be old and not relating to the confiscated goods. However, the order of Additional Collector was modified to the extent that redemption fine was reduced from Rs.1,00,000 to Rs.75,000. An appeal against the said order before the Appellate Tribunal was dismissed on 12-8-2000. Thereafter, applicant filed this Special Customs Appeal No.107 of 2000 which was also found devoid of any force hence it was dismissed as no question of law appeared to have arisen under the circumstances of the case and out of the orders passed by the various forums impugned in the appeal.
Since the other Hon able Member of the Bench Muhammad Roshan Essani, J.( as he then was) retired during the pendency of this review application hence in view of therequirement of Order XLVII, Rule 5, C.P.C. it has been placed before me.
I have heard Mr. Sohail Muzaffar, learned counsel for the applicant, and Mr. Fariduddin, learned counsel for the respondent, main contention of Mr. Sohail Muzaffar, learned counsel for the applicant, is that the questions of law raised in the appeal were neither answered nor decided and the appeal was dismissed mainly on the ground that findings of two forums below were concurrent, but the same were recorded without there being any evidence on record or applicability of judicial mind. It is further contended that applicant was not absconder as he has appeared before the authority as well as before the Appellate Tribunal with his Advocate. It is further contended that this Court has failed to answer the questions of law framed for its consideration regarding liability in respect of confiscation and non-compliance of the provisions of section 171 of the Customs Act learned counsel further argued that no finding was given whether respondent agency was empowered to register an F.I.R.andwhetherthesamecouldhavebeenregisteredat Hyderabad Collectorate which is not a police station in terms of section 4(s) of Cr.P.C. Lastly it is urged that provisions of section 196 of the Customs Act, 1969 under which the appeal was filed were totally negated.
Mr. Fariduddin, learned counsel for the respondent, at the very outset has attacked the maintainability of this reviewapplication by arguing that right of review is not a substantial right and it is not be read in every statute unless expressly conferred bylaw. Reliance has been placed on a DB judgment of this Court reported as Messrs Baghpottee Services (Pvt.) Limited and others v. Messrs Allied Bank of Pakistan Limited (2001 CLC 1363). Reliance has also been placed on a judgment from Hon ble Supreme Court reported as The State v. Umer Hayat (PLD 1992 SC 393) which relates to burden of proof in customs cases where a departure from general rule has been made under the relevant provisions of law. He has also referred State through Deputy Attorney General Peshawar v. Banda Gul and 2 others (1993 SCMR 311) to show that the purpose of notice under section 171 of the Customs Act, 1969, is to post accused with the knowledge of the allegation against him and service of such notice is not condition precedent for launching prosecution.
So far the contention of Mr. Sohail Muzaffar that points of law raised in this customs appeal were not decided by this Court has no force as the question raised related to factual controversy and stand already decided in view of the findings recorded by the Collector Customs and the Appellate Tribunal that the betel-nuts being smuggled/contraband goods were confiscated as per law and the bills of entry produced in respect of the claim did not tally with the material recovered, hence the appellant/claimant failed to discharge his burden. Another objection raised by the learned counsel that no F.I.R. could be registered at Hyderabad Collectorate of Customs which is not a notified policestation in terms of section 4(s) of the Criminal Procedure Code is also devoid of any force. Chapter XVIII of the Customs Act, 1969, which relates to powers of Search, Seizure, arrest and adjudication of offences is a complete answer to such objection. Section 161 of the Act deals with the situations as existed in the case in hand. Subsections (1), (2), (8), (9) and (12) of section 161 are a complete answer to the objection raised by the learned counsel for the appellant/applicant.
The upshot of the discussion made above is that this review application is dismissed having no merits as well as being not maintainable.
M.B.A./A-175/KApplication dismissed.